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HomeMy WebLinkAbout1998-09-22; City Council; Resolution 98-3151 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 0 0 RESOLUTION NO. 98-315 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A REIMBURSEMENT AGREEMENT WITH THE CATELLUS RESIDENTIAL GROUP, INC. FOR THE CONSTRUCTION OF A DEEP SEWER WITHIN POINSETTIA LANE AND REAL PROPERTY REFERRED TO AS BRIGANTINE DRIVE, CMWD PROJECT NO. 89-505 WHEREAS, the Catellus Residential Group, Inc. as a condition of approval for Carlsbad Tract 93-09 (Ocean Bluff), is conditioned to construct a deep sewer within Poinsettia Lane and real property referred to as Brigantine Drive; and WHEREAS, the developer's schedule precedes that of the City of Carlsbad for the construction of the Poinsettia Lane Improvement and real property referred to as Brigantine Drive; and WHEREAS, the Catellus Residential Group, Inc., has requested the City Council approval of a Reimbursement Agreement (attached hereto marked "Exhibit "A" and incorporated by this reverence) pursuant to § 66486 of the Government Code for the construction of said improvement in Poinsettia Lane and real property referred to as Brigantine Drive; and WHEREAS, the Catellus Residential Group, Inc. desires to begin construction of Poinsettia Lane and real property referred to as Brigantine Drive; and WHEREAS, the Roesch Property, which is adjacent to Tract 93-09, will be conditioned to pay to the City the cost for the construction of the deep sewer in excess of $36,377 upon issuance of a grading permit on the Roesch property; and WHEREAS, the City will reimburse the Catellus Residential Group, Inc. for the cost of the deep sewer upon receipt of payment from the Roesch Property; and WHEREAS, the Planning Director has determined that the requested action is in compliance with prior environmental review, conducted for Zone 20 LSMP Program EIR 4 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 90-09 by adoption of Resolution No. 3869 approved on December 20, 1995 and EIR 90-09A by adoption of Resolution No. 431 8 approved on June 17, 1998. NOW, THEREFOR, BE IT RESOLVED, by the City Council of Carlsbad, California, as fol8ows. 1. That the above recitations are true and correct. 2. That the Reimbursement Agreement by and between the Catellus Residential Group, Inc. and the City of Carlsbad is hereby approved and the Mayor is authorized and directed to sign said agreement on behalf of the City Council. I 3. That upon receipt of payment from the Roesch Property, the Finance Director is authorized to reimburse the Catellus Residential Group, Inc. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 22nd day of September , 1998 by the following vote, to wit: I AYES: Council Members Lewis, Finnila, Nygaard, Kulchin and Hall NOES: None I ABSENT: None ATTEST: ~ 1 1 - 24)- P*L ALETHA L. RAUTENKRANZ, City clerk (SEAL) 1 0 0 RECORDING REQUESTED BY: WHEN RECORDED, PLEASE MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008 Please record the document at no fee as it is to the benefit of the City (Gov. Code [6103].) Space above this line for Recorder's Us1 DEEP SEWER REIMBURSEMENT AGREEMENT THIS DEEP SEWER REIMBURSEMENT AGREEMENT ("Agreement") is made and entered into as of th 22nd day of September , 1998 by and between CATELLUS RESIDENTIAL GROUP, INC., a Californi corporation (hereinafter "Catellus"), and the CITY OF CARLSBAD, a municipal corporation of the State of Californi (hereinafter "the City"), with reference to the following: RECITALS A. Catellus is the owner of that certain real property located in the City of Cartsbad, County of San Diego, Sta of California, and more particularly described on Exhibit "A" attached hereto and incorporated herein by the reference (tt "Ocean Bluff Property"). B. The real property located adjacent to the Ocean Bluff Property in the City of Carlsbad, County of San Dieg State of California, is more particularly described on Exhibit "B" attached hereto and incorporated herein by this referen (the "Roesch Property"). C. Both the Ocean Bluff Property and the Roesch Property will receive sewer service from the City. D. Catellus will install the sewer improvements which will serve the Ocean Bluff Property. Catellus is al required to install the sewer improvements which will serve the Roesch Property (the sewer improvements serving bc properties being collectively referred to herein as the "Deep Sewer Improvements). The Deep Sewer Improvements \ be located beneath the real property more particularly depicted on Exhibit "C" attached hereto and incorporated herein this reference, which real property includes what is commonly referred to as "Brigantine Drive," as weli as portions of w' 09/09 (CT 93-09, Proj. 89-505) 0 e is commonly referred to as "Poinsettia Lane" (all of the foregoing collectively being referred to herein as the "Sewe Improvement Property"). E. The City has informed Catellus that the sewer lines which are to be installed as part of the Deep Sew€ Improvements (in order to properly serve the Roesch Property) will need to be installed at a depth of approximately thiQ eight (38') feet below the existing ground surface (which is significantly deeper that the ordinary depth of sewer lines). F. The parties recognize that the installation of sewer lines at such extraordinary depth requires significanl greater work and expense than customary sewer line installation for a residential tract. G. The parties acknowledge that pursuant to Q 66485 of the California Government Code, a local agency m; require a subdivider to install improvements containing supplemental size, capacity, number, or length, for the benefit property not within the subdivision. The parties further acknowledge that pursuant to Q 66486 of the Government Code such improvements are required, the local agency shall enter into an agreement with the subdivider to reimburse ti subdivider for that portion of the cost of those improvements in excess of the construction cost customarily required for ti subdivision. H. To accommodate Catellus for such added expense, the parties hereby desire to provide for 1 reimbursement by the City to Catellus for all sewer installation costs incurred by Catellus in excess of those which WOI normally be incurred if the Deep Sewer Improvements were installed at a standard depth (as would be required if install only for the benefit of the Ocean Bluff Property). AGREEMENT NOW, THEREFORE, in consideration of the terms and agreements hereinafter set forth, and for other good ~ valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree follows: 1. DESCRIPTION OF WORK. The Deep Sewer Improvements shall include approximately six hundred ninety-six linear feet (696") of eight-i (8) diameter pipeline from station 9+25.37 to station 16+21.47 and to the two (2) access holes at station 12+75.67 station 16+21.47 (as shown on Drawing 360-38, Sheets 6 and 7), plus approximately seven hundred thirty-two linear (732') of eight-inch (8") diameter pipeline from station 10+16 to station 15+92.81 and from station 10+49.31 to st: 12+095.20, and to three (3) access holes at station 1 i+78.52, station 13+87.25, and station 15+92.81 (as show1 Drawing 360-3, Sheets 3 and 4). 2 Rev. 09/0 0 0 2. CITY REIMBURSEMENT OBLIGATION. In the event that Catellus installs the Deep Sewer Improvements for any reason whatsoever, includinc without limitation, to satisfy any condition of approval in connection with a tentative map for either the Ocean Bluff Propert or the Roesch Property, the City shall reimburse Catellus an amount (the "Reimbursement Amount") equal to th difference between the cost of the Deep Sewer Improvement Installation (the "Actual Cost") and Thirty-Six Thousan Three Hundred Seventy-Seven Dollars ($36,377) (which the parties agree is the reasonable estimate of the cost to inst: sewer improvements solely for the benefit of the Ocean Bluff Property). The Actual Cost shall include all costs associate with the installation of the Deep Sewer Improvements. 3. CONTRACTOR: INVOICES. The Deep Sewer Improvements shall be installed by a licensed contractor or sub-contractor (the "Contractor selected by Catellus (which Contractor shall be selected after receipt of bids from no fewer than three (3) contractor! Catellus shall instruct the Contractor to prepare and deliver to Catellus duplicate copies of all periodic and final invoices f labor and materials used in the installation of the Deep Sewer Improvements. Catellus shall forward one copy of ea1 such invoice to the Engineer (the "District Engineer") for the Carlsbad Municipal Water District (the "District"), togeth with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor's invoice. The Distr Engineer shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs set forth Section 2 of this Agreement. If the District Engineer objects to any item comprising the Reimbursement Amount, tl District Engineer shall notify Catellus within ten (10) days of receipt of all invoices forwarded by Catellus and ti Contractor. Failure to so notify Catellus shall be deemed the District Engineer's approval of such invoices. In the evE the District Engineer does object, Catellus and the District Engineer shall meet to discuss the disputed amount, a attempt to resolve the matter through good-faith negotiation. If the parties are unable to resolve the dispute through goc faith negotiation, the dispute shall be submitted to judicial reference in accordance with Section 6.i. of this Agreernc Prior to the submission to the District Engineer of the final invoices, Catellus shall obtain all necessary or appropriate I releases from the Contractor, and shall obtain from the City, the District, and any and all necessary or appropri governmental agencies, all approvals, certificates, and other documents necessary or appropriate to indicate cornpietion of the Deep Sewer Improvements and the ability to put such Deep Sewer Improvements into use. The d Catellus receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Dt Sewer Improvements (the "Completion Date"). 3 Rev. 09/OE e 0 4. REIMBURSEMENT SCHEDULE. The City shall collect a fee (the "Deep Sewer Fee") upon the issuance of a grading permit for the Roesc Property. The City shall remit the entire Reimbursement Amount to Catellus no later than (30) days following collection b the City of the Deep Sewer Fee. 5. NOTICE. Payment or notice required or permitted to be given by one party to the other shall be in writing and shall bl deemed effective (a) on personal delivery on the second business day after mailing by Certified or Registered Unitel States mail, postage prepaid, return receipt or (b) on the succeeding business day after mailing by Express Mail or aft€ deposit with a commercial delivery service of general use, all postage or fees prepaid and addressed to the parties at th addresses below: If to Catellus: Catellus Residential Group 5 Park Plaza, Suite 400 Irvine, CA 92014 Attn: Mr. Brian J. Milich If to City: Carlsbad Municipal Water District 5950 El Carnino Real Carlsbad, CA 92008 Attn: Robert J. Greaney, General Manager Notice of change of address shall be given by written notice in the manner set forth in this paragraph. 6. MISCELLANEOUS. a. Entire Aareement. This Agreement contains the entire agreement between the parties with respect to thc matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between thc parties with respect to the matters set forth herein. b. Amendment. This agreement may be modified only in a writing signed by both parties. c. Successors and Assians. This Agreement shall be binding upon and inure to the benefit of each pac and their respective heirs, personal representatives, successors and assigns. d. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights upon an) individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. e. Attorney's Fees. In the event either party shall institute any action or proceeding against the other pafi relating to this Agreement, the unsuccessful party in such action or proceeding shall reimburse the successful party for it! 4 Rev. 09/09/91 0 e disbursements incurred in connection therewith and for its reasonable attorneys' fees as fixed by the court. In addition tc the foregoing award of attorneys' fees to the successful party, the successful party in any lawsuit on this Agreement sha be entitled to its attorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment. Thi. provision is separate and several and shall survive any merger of this Agreement into any judgment on this Agreement. f. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by : court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. g. Governina Law. This Agreement shall be governed by, and construed in accordance with, the laws of thc State of California. h. Counteroarts. This Agreement may be executed in any number of counterparts, each of which shall bc deemed an original, but all of which, taker together, shall constitute one and the same instrument. i. DisDutes: Claims. If a dispute should arise regarding the performance or interpretation of this Agreement the following procedure shall be used to resolve and question of fact or interpretation not formally resolved by the parties Such questions, if they become identified as a part of a dispute among persons operating under the provisions of thi: Agreement, shall be reduced to writing by the principal Catellus or the City's Public Works Director (Director). A copy o such documented dispute shall be forwarded to both parties involved along with recommended methods of resolutior which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution, within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggreived patty, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the Cib Manager. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, anc directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. Ill Ill Ill Ill Ill Ill Ill Ill Ill 5 Rev. 09/09/98 e m j. m. This Agreement shall be effective as of the date hereof, and shall terminate on the earlier of (i) the date the City fully reimburses Catellus the Reimbursement Amount, or (ii) January 1,201 5. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. "CATELLUS" "CIN" CATTELLUS RESIDENTIAL GROUP, INC., a California CITY OF CARLSBAD, a municipal corporation of the corporation .[L & By: (sign her ) BRIAN J. MlLlCH Vice President ATTEST: (print namelti By: "2 .i . -..., cGGh"- (sign here) : . ' ... .. *. . . ." .. -, ALETHA L. RAUTENKRAdZ, City Clerk .. . .. .. . . Stephen J. bt'tc$;lAssiii* Secretary (SEAL) ~. . (print name/title) ~ A?" _.:. ',:.. . " 1 .. .. . , - .. . . .. . .",.~ .L . . ~ " _-. v. . -6 . - . : ~ .- .. . . : '... .. , >.. , . .. ..,s (Proper notarial ackno&&jme$ &?xecution by Catellus must be attached.) (President or vice-prddent and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) . . ... . t . .'.. "., . .ii . - APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: - Lob&- City Attorney 7(%[$ b 6 Rev. 09/09/98 0 0 STATE OF CALIFORNIA 1 COUNTYOF "".$C>+>L 1 0n-C &.< \q \%before me,x<bk c .. a ~ 3 1%~ a V\k.<L\ -?\ *&aL } ss. ' DATE . ' ' NAME ANb TITLE OF 0WER .-. personally appeared d \cy- h,\\ h- P personally known to me -8R - "u !to be the person(s) whose name(s) M subscribed to the within instrument and acknowledged to me that kSbe@ executed the same in l&$tW@uthorized capacity(ies), and that by "@ signature@) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 4 REBECCA J. BUKE Commiru'on # 1167018 t Orange County MyCmrn.ExpiresJon1.2002 I t Notary Public - Califomio f a (This area for official notary seal.) ___ ~~~ ~ Title or Type of Document Date of Document No. of Pages Signer@) other than named above t CMWD 89605 06/14/95 Rev. 0 0 EXHIBIT "A" Legal Description of Ocean Bluff Property CARLSBAD TRACT 93-09 BEING A SUBDIVISION OF THAT PORTION OF SECTION 22, TOWNSHIP 12 SOUTH RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, BEING DESCRIBED AS PARCEL B IN RECORDS OF SAN DIEGO COUNTY AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF LOT 3 OF SAID SECTION 22 AS SHOWN AND ESTABLISHED Oh RECORD OF SURVEY MAP NO. 12096, FILED IN THE OFFICE OF THE COUNTY RECORDER, MARCH 23, 1989 SAID CORNER BEING MARKED BY A 2 INCH IRON PIPE WITH CAP STAMPED "L.S. 3189 1/2M AHR 1979"; THENCE ALONG THE EAST LINE OF SAID LOT 3 AS ESTABLISHED PER SAID RECORD OF SURVEY MAP NO. 12096 CORNER OF SAID LOT 3, SAID CORNER BEING MARKED BY j/4 INCH IRON PIPE MARKED "R.C.E. 8210" AS SHOWN AND ESTABLISHED ON SAID RECORD OF SURVEY MAP NO. 12096; THENCE NORTH 86O57'48 WEST (NORTH 86O57'35" WEST PER R OF S 12096), 663.55 FEET TO AN ANGLE POINT OF SOUTHERLY LINE OF SAID LOT 3 BEING MARKED BY A 2 INCH IRON PIPE STAMPED "L.S. 2821" AS SHOWN AND DESCRIBED ON SAID RECORD OF SURVEY MAP NO. 12096; THENCE NORTH 86O53'40" WEST, 663.62 FEET (NORTH 86O53'31" WEST, 663.69 FEET PER R OF S 12096) TO A 2 INCH IRON PIPE STAMPED "L.S. 2821" ESTABLISHING THE SOUTHWEST CORNER OF SAID LOT 3 PER RECORD OF SURVEY MAP NO. 12096; THENCE ALONG THE WESTERLY LINE OF SAID LOT 3 AS ESTABLISHED PER RECORD OF SURVEY MAP NO. 12096 (SAID LINE ESTABLISHED BY SAID 2 INCH IRON PIPE AND % INCH IRON PIN AS SHOWN ON R OF S 12096), NORTH Ol"43'58" WEST (NORTH 01 O43'45" WEST PER R OF S 12096), 997.78 FEET TO A POINT OF THE NORTH LINE OF SAID SECTION 22; THENCE ALONG SAID NORTH LINE, SOUTH 89O2834" EAST, 1328.08 FEET (SOUTH 89O28'21" EAST, 1327.24 FEET PER R OF S 12096) TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF, IF ANY, LYING NORTH OF THE SOUTH BOUNDARY LINE OF RANCHO AGUA HEDIONDA, AS SAID SOUTH LINE WAS ESTABLISHED MAY 5, 1913, BY DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAN DIEGO COUNTY, IN THAT CERTAIN ACTION NO. 16830 ENTITLED KELLY INVESTMENT COMPANY, A CORPORATION, VS. CLARENCE DAYTON HILLMAN AND BESSIE OLIVE HILLMAN. CERTIFCATE OF COMPLIANCE RECORDED ON MARCH 11, 1997 AS FILE NO. 1997-0106631 OF OFFICIAL sum 01 WIZ" EAST (SOUTH 01 O28'59" EAST PER R OF s 12096), 1056.64 FEET OF THE SOUTHEAST e EXHIBIT "B" e Legal Description of Roesch Property LOT 4 IN SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, EXCEPTING THEREFROM THOSE PORTIONS THEREOF LYING NORTH OF THE SOUTH BOUNDARY LINE OF THE RANCHO AGUA HEDIONDA, AS SAID SOUTHLINE WAS ESTABLISHED MAY 5,1913, BY DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAN DIEGO COUNN, IN THAT CERTAIN ACTION (NO. 16830) ENTITLED KELLY INVESTMENT COMPANY, A CORPORATION, VS. CLARENCE DAYTON HILLMAN AND BESSIE OLIVE HILLMAN. ALSO EXCEPTING THEREFROM THAT PORTION, IF ANY, LYING WITHIN THE LAND CONVEYED TO OCEAN RECORDS OF SAID SAN DIEGO COUNTY. BLUFF PARTNERSHIP BY DEED RECORDED ON APRIL 28, 1997 AS FILE NO. 1997-0194116 OF OFFICIAL ' SITE PLAN DEEP SEWER -" -" Project Name: Project Exhibi DEEP SEWER IN POINSETTIA LANE AND BRIGANTINE DRIVE NO, C 89-505 0 0 CATELLUS RESIDENTIAL GROUP, INC: SECRETARY CERTIFICATE RESOLVED, that Brian Milich in his capacity as Vice President and Stephen Muller in his capacity as Assistant Secretary are authorized for, on behalf of and in the name of Catellus Residential Group, Inc. (the “Corporation”), to sign the Deep Sewer and Water Reimbursement Agreement for the Carisbad Municipal Water District, and all other related documents and agreements. The execution of such agreements and documents by them shall be conclusive evidence of full Corporate approval thereof. IN WITNESS WHEREOF, I have affixed my name as Assistant Secretary of said Corporation and have caused the corporate seal of the corporation to be hereunto affixed this 14h day of September, 1998. ~aLk&z&;- ..”